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vol. 12 num. 4 lang. eshttp://www.scielo.org.za/img/en/fbpelogp.gifhttp://www.scielo.org.za
Editorial]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400001&lng=es&nrm=iso&tlng=es
The bench and academia]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400002&lng=es&nrm=iso&tlng=es
Religious freedom and equality as celebration of difference: a significant development in recent South African Constitutional case-law]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400003&lng=es&nrm=iso&tlng=es
This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2) BCLR 99 (CC), 2008 (1) SA 474 (CC)(hereafter Pillay). Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural) Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural) rights. Finally Pillay illustrates that the constitutional guarantee of the right to freedom of religion, conscience, belief and opinion (entrenched in section 15(1) of the Constitution of Republic of South Africa 1996) can be crucially dependent upon due effect being given to the proscription of unfair discrimination on the grounds of religion, conscience, belief and opinion elsewhere (namely in section 9(3)) of the Constitution.Formulating specialised legislation to address the growing spectre of cybercrime: a comparative study]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400004&lng=es&nrm=iso&tlng=es
The article looks at cyber legislation formulated to address cybercrime in the United States of America, the United Kingdom, Australia, India, the Gulf States and South Africa. The study reveals that the inability of national laws to address the challenges posed by cybercrime has led to the introduction of specialised cyber legislation. It is advocated that countries should amend their procedural laws to include intangible evidence of cybercrime, as opposed to tangible evidence of traditional crimes. It is possible that new forms of cybercrime will often emerge with evolving technology; therefore new cyber laws should be introduced to respond to these rapid changes. There should also be continuous research and training of IT security personnel, financial services sector personnel, police officers, prosecutors and the judiciary to keep them abreast of the evolving technology. International co-operation between countries is also required to address the global nature of cybercrime. To this end countries such as South Africa should ratify the Council of Europe's Convention on Cybercrime (COECC) to serve as a deterrent against international cybercrime. A balanced approach that considers the protection of fundamental human rights and the need for the effective prosecution of cybercrime has been mooted as the way forward.Traditional leadership and independent Bantustans of South Africa: some milestones of transformative constitutionalism beyond Apartheid]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400005&lng=es&nrm=iso&tlng=es
The institution of traditional leadership represents the early form of societal organisation. It embodies the preservation of culture, traditions, customs and values. This paper gives a brief exposition of the impact that the pre-colonial and colonial regimes had on the institution of traditional leadership. During the pre-colonial era, the institution of traditional leadership was a political and administrative centre of governance for traditional communities. The institution of traditional leadership was the form of government with the highest authority. The leadership monopoly of traditional leaders changed when the colonial authorities and rulers introduced their authority to the landscape of traditional governance. The introduction of apartheid legalised and institutionalised racial discrimination. As a result, the apartheid government created Bantustans based on the language and culture of a particular ethnic group. This paper asserts that the traditional authorities in the Bantustans of Transkei, Bophuthatswana, Venda and Ciskei seemed to be used by the apartheid regime and were no longer accountable to their communities but to the apartheid regime. The Bantustans' governments passed various pieces of legislation to control the institution of traditional leadership, exercised control over traditional leaders and allowed them minimal independence in their traditional role. The pattern of the disintegration of traditional leadership seemed to differ in Transkei, Bophuthatswana, Venda and Ciskei. The governments of these Bantustans used different political, constitutional and legal practices and methods to achieve this disintegration. The gradual disintegration and dislocation of the institution of traditional leadership in these four Bantustans led to the loss of valuable knowledge of the essence and relevance of the institution of traditional leadership. One of the reasons for this anomaly emanated from the fact that undemocratic structures of government were established, commonly known as traditional authorities. More often than not these traditional institutions were mere puppet institutions operating on behalf of the Bantustan regime, granted token or limited authority within the Bantustan in order to extend the control of the Bantustan government and to curb possible anti-apartheid and anti-Bantustan-system revolutionary activity within traditional areas. The advent of the post-apartheid government marked the demise of apartheid and the Bantustan system for traditional leaders and the beginning of a new struggle for the freedom of the traditional authorities. This paper highlights changes brought about by the new constitutional dispensation in the institution of traditional leadership. The author demonstrates that the primary objective of the democratic government of South Africa in this regard is to transform the institution of traditional leadership and re-create the institution completely in line with the values and principles of the 1996 Constitution and democracy. The post-apartheid order rejects the old order as far as it is sexist, racist, authoritarian and unequal in its treatment of persons. All of the rules, principles and doctrines of the institution of traditional leadership apply in the new dispensation only in so far as they are rules, principles and doctrines that would survive the scrutiny of the present society when measured against their compliance with the requirements of human dignity, equality and freedom. The government has enacted democratic legislation intended to change the institution of traditional leadership and make it consistent with the 1996 Constitution. The institution of traditional leadership is obliged to ensure full compliance with the constitutional values and other relevant national and provincial legislation. The right to equality, including the prohibition of discrimination based on gender and sex, has an important impact on the institution of traditional leadership. For example, under the new constitutional dispensation women may become traditional leaders in their traditional communities, which is contrary to the old and long observed African customary rule of male intestate succession, which excluded women from succession to the position of traditional leadership. One of the remarkable features of the transformation of traditional leadership in South Africa is that gender equality has been progressively advanced. The inclusion of women in traditional government structures adds democratic value and credibility to the institution of traditional leadership, which for many years remained essentially male-dominated. The doctrine of transformative constitutionalism is well established in South Africa.The development of the interface between law, medicine and psychiatry: medico-legal perspectives in history]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400006&lng=es&nrm=iso&tlng=es
Medicine and law were related from early times. This relation resulted as a necessity of protecting communities from the irresponsible acts of impostors. Various legal codes dealing with medical malpractice existed in Egypt, Mesopotamia, China, Islam, Greece, Rome, Persia and India. Over the course of the past 30 years, interest in the history of psychiatry has boomed. Much of this proliferation of interest has taken place under the broad influence of postmodernism and has resulted in multiple and diverse histories that no longer seek to provide a linear narrative of constant evolutionary progress. Rather, these new histories explore and disrupt taken for granted assumptions about the past and provide a starting point for discussion and debate about the some of the very foundations of mental health care in South Africa. As a matter of practical importance knowledge of how knowledge accrues and knowledge of the mistakes of the past is of prime importance in preventing similar mistakes in present and future work. An important reason for specifically understanding historical psychiatry is the fact that many of the uncertainties experienced in the present are a direct result of decisions made in the past. The key issue is that while it is tempting to experience current psychiatric and legal approaches towards the mentally disordered as natural and permanent, an understanding of the past helps mental health and legal practitioners to see things in a different perspective. Psychiatric and legal approaches towards the mentally disordered have changed over time and can undoubtedly also be changed in future. Therefore, the research conducted in this article focuses on the history and development of law and psychiatry including prehistoric times, the Arabian countries, the Nile Valley as well as Greece and Rome.Cultural practices and HIV in South Africa: a legal perspective]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400007&lng=es&nrm=iso&tlng=es
South Africa has not escaped the rising prevalence and severe impact of HIV/AIDS in relation to women. From an economic and social vantage point, the HIV/AIDS epidemic effects women the hardest, with underprivileged black women the most susceptible to the virus. The theoretical framework of this paper focuses on the intersection between HIV/AIDS, gender inequality and gender violence, and more specifically on certain cultural practices and customs that contribute towards and exacerbate women's subordination and inequality, which in turn increase women's exposure to HIV infection. Relevant to this focus is inevitably an analysis of the perceived threats to specific fundamental human rights as a result of some of the entrenched practices that continue to reinforce women's subordinate position in society, aggravated by the high incidence of gender violence.The battered woman in criminal law: a legal comparative enquiry]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400008&lng=es&nrm=iso&tlng=es
This article seeks to critically examine recent criminal law developments in Australia, England and Wales that specifically address the situation in which battered women find themselves. This article specifically focuses on the question of whether or not South Africa can learn something from these developments in order to make better provision for battered women who kill their abusers after having suffered through years of physical abuse. The question of whether or not a separate defence can be created for battered women in South Africa is also explored in this article. In order to answer this question, an investigation is launched into suggested defences in Australia, New Zealand and South Africa.The debt counselling process: closing the loopholes in the National Credit Act 34 of 2005]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400009&lng=es&nrm=iso&tlng=es
Statistics showing that only 3.8% of consumers who have applied for debt review in terms of the National Credit Act 34 of 2005 (NCA) have succeeded to have their cases adjudicated by the court, indicate that the process is not functioning effectively. In January 2009, the Law Clinic of the University of Pretoria was commissioned by the National Credit Regulator (NCR) to conduct an assessment on the reasons for the ineffectiveness of the debt counselling process. The research report indicated that credit providers not co-operating in the process and not-complying with the NCA and Regulations and the so-called work stream agreement reached between major credit providers, established debt counsellors and the National Credit Regulator, were the main reasons for the ineffectiveness of the debt counselling process. Second on the list of so-called major obstacles were the vagueness and insufficiency of the NCA and Regulations. The main purpose of this article, which is based on chapter 2 of the research report mentioned above, is to identify the loopholes in the NCA which cause the lack of legal certainty and which contribute to the ineffectiveness of the debt counselling process. Although the work stream guidelines are to be welcomed because they attempt to find a solution for the vagueness and insufficiency of the NCA and Regulations, it is submitted that the situation is still not desirable. Many credit providers and debt counsellors did not form part of the work stream processes and therefore cannot be bound by these agreements. The NCR's application to the High Court for a declaratory order in terms of section 16(1)(b)(ii) may shed some light on the problems currently experienced, however, it is submitted that the best solution is for the legislator to address these shortcomings in order to bring about a proper and effective debt counselling process. By also taking the Draft Debt Counselling Regulations into consideration, certain issues which, in our view, should be addressed by the legislator are identified and proposals for the amendment of provisions of the NCA are made. Ultimately, the effectiveness of the NCA's provisions to provide debt relief to the over-indebted consumer depends on the co-operation of the different role players and compliance with the spirit of the Act in terms of section 86(5)(b) to participate in good faith in the review and in the negotiations for debt rearrangement. It is submitted that in theses negotiations the purpose of the Act, namely to protect consumers, should constantly be kept in mind. Credit providers will have to change their attitudes and appreciate the fact that they will have to take greater responsibility for the negative consequences of credit granting. It is furthermore submitted that more should still be done to prevent over-indebtedness and to reduce the need for consumers to resort to the debt relief mechanisms of the Act. The apparent need for consumer education at both the adult and school level should therefore be addressed.The Constitutional validity of search and seizure powers in South African criminal procedure]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400010&lng=es&nrm=iso&tlng=es
An important part of crime investigation is the obtaining of evidence through the search and seizure of persons and things. The South African Constitution* recognises that state authorities should not be permitted untrammelled access to search and seize. It is a necessary incident to democracy that citizens must be protected from unjustified intrusions of privacy and property by agents of the state. Otherwise, arbitrary state actions could severely affect the personal freedom and associated fundamental rights that are intended to be a predominant feature of democratic society. In this article I consider whether or not certain provisions contained in the Criminal Procedure Act 51 of 1977 and the South African Police Service Act 68 of 1995 (hereafter the Criminal Procedure Act and the South African Police Service Act respectively) are in conflict with the Constitution. The provisions deal with search and seizure. I will also turn to the laws of foreign jurisdictions, specifically of the United States and Canada, for guidance and comparison. At the outset it should be pointed out that this article does not argue for the abolition of the search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act. It is acknowledged albeit reluctantly, that there may still be a need for some of them. It is the investigative and enforcement measures provided for by these provisions, rather than the objectives, which are in issue here. It is submitted that there are search and seizure provisions contained in the Criminal Procedure Act and the South African Police Service Act, which are inconsistent with the spirit, purport and object of the Constitution.Marimuthu Munien v Bmw Financial Services (SA) (Pty) ltd unreported case no 16103/08 (KZD)]]>http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400011&lng=es&nrm=iso&tlng=es
Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the NCA) provides that, as a required procedure before debt enforcement, a credit provider must draw the default to the consumer's notice in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date. Even though section 129(1)(a) is silent as to the method by which the default should be brought to the consumer's notice, section 130(1)(a) provides clarity by requiring the section 129(1)(a) notice to be delivered. It appears that a credit provider who fails to comply with the provisions of section 129(1)(a) prior to debt enforcement by means of litigation will be in a procedural predicament as the credit provider will not possess a complete cause of action thus, for instance, rendering the summons excipiable. The crucial question thus appears to be whether or not in a given situation one may say that there was proper compliance with section 129(1)(a) as this directly affects the existence or absence of a complete and proper cause of action. A number of factors has to be considered in order to address this question, the most important being if the section 129(1)(a) notice was duly 'delivered'. In this regard two questions are especially relevant: a) When exactly can it be said that a section 129(1)(a) notice was 'delivered' for purposes of the NCA? b) Is it necessary for such notice to be received by the consumer in order to constitute proper compliance with the delivery requirement pertaining to section 129(1)(a)? The above questions were decided on in a recent judgment, Marimuthu Munien v BMW Financial Services (SA) (Pty) Ltd Case no 16103/08 (KZD) (unreported). This article will analyse section 129(1)(a) of the NCA by inter alia considering the above questions against the backdrop of the particular decision.